When then-Deputy US Attorney General Sally Yates issued a memorandum in 2015 instructing Department of Justice staff to prioritize the criminal prosecution of individuals in corporate misconduct investigations, observers viewed it as a sharp turn from prior DOJ enforcement priorities. Corporations would no longer be permitted to settle prosecutions unless they cooperated in the criminal investigations of senior executives. Many assumed the Trump Administration DOJ would reverse course on the Yates Memo. And, indeed, in a November 2018 speech, Deputy Attorney General Rod Rosenstein announced that the department would soften the terms of the Yates policy while retaining its core elements.
The Trump Administration DOJ has also made a handful of other changes to its civil enforcement priorities, chief among them the Brand Memo issued by then-Associate Attorney General Rachel Brand, which prohibits federal prosecutors from using noncompliance with agency guidance documents as the basis for civil enforcement actions.
What do the Brand Memo and changes to the Yates Memo policy mean for the DOJ’s civil enforcement priorities? How else have these priorities changed during the first two years of the Trump Administration? What other changes are coming? And what impact are these changes likely to have on federal prosecutors and corporate behavior? Our panel of experts discussed these and related questions.
This Congressional Civil Justice Academy briefing featured:
Partner, Akin Gump Strauss Hauer & Feld LLP
Michael S. Greve
Professor of Law, Antonin Scalia Law School
Partner & General Counsel, Phillips & Cohen